91 Ala. 444 | Ala. | 1890
This is an action for damages for personal injuries to appellant’s intestate, resulting in his death. The complaint contains three counts, each of which relies upon the negligence of the deiendant company, and not upon that of fellow-servants. The case is, therefore, not bought under the employer’s act (Code, §§ 2590 et seq.) The first count alleges that the defendant, being engaged in the business of operating a furnace for the purpose of smelting iron ore, so negligently conducted said business as to cause molten iron to come in contact with the person of plaintiff’s intestate, inflicting injuries from which he died a few days afterwards. The second and third counts proceed on the theory, that the defendant negligently employed incompetent servants in the particular work upon which they and the intestate were engaged at the time of the accident, and the injury resulted from the 'incompetency of these co-servants of the intestate. The trial developed three controverted issues: 1st, whether defendant was negligent in employing stock-house men having no special knowledge, skill or experience, to do the work in which the injury occurred; 2d, whether defendant was negligent in failing to instruct said employés as to the perils incident to the work they were put to do; and 3d, whether plaintiff’s intestate was himself guilty of negligence which proximately contributed to the injury.
The assignments of error bring under review the ruling of the court in this regard. It is admitted in argument, and fully established in our decisions, that the custom and usage of other well regulated businesses of the like kind, as to the use of certain machinery and mechanical appliances, may always be adduced in evidence, as tending to negative the charge of negligence, when that charge is based upon the use of such m achinery and appliances by the defendant.—L. & N. R. R. Co. v. Allen, 78 Ala. 494; Ga. Pac. Railway Co. v. Propst, 83 Ala. 518; Ala. Gr. So. R. R. Co. v. Arnold, 84 Ala. 159. But it is insisted that the same rule does not apply with respect to the employment of human beings. W e are unable to perceive any sound reason for this insistence, at least as applied to this case. The presumption is, that well regulated furnaces exercise due care in the conduct of their business. If it is customary for them to employ a particular class .of men for a particular purpose, the further presumption is, that that class of men are competent for the work in hand; and their competency may be the result either of a special knowledge or experience with respect to the particular thing to be done, or from the work being such as to require no special knowledge or experience. In either case, the fact of the custom or usage of prudently managed furnaces to employ that class of men is some evidence that the defendant company was not guilty of negligence in their employment.
The evidence tended, in some degree, to show two distinct elements of danger incident to the work, upon which the plaintiff's intestate was engaged when the injury was suffered —one open to ordinary observation, and capable of being measured and judged of by men of no special knowledge or instruction in the premises ; and the other latent in character, with nothing which could be seen and understood by the unskilled and uninstructed to give warning of its presence, or suggest means of avoiding it. The “boil” of iron, while its lower part had sunk down considerably — two and a half, or three feet, may be — into the earth, yet protruded above the surface, and was visible to those engaged in cutting the trench. It was common knowledge, appreciable by inexperienced as well as experienced persons, that if the ditch was open entirely up to the melted mass, its bottom being below the lowest estimated point of the “boil,” the iron would immediately flow into and along the trench, thus imperilling those who should be in there at the time. This was the open and unobscured danger, which was sought to be guarded against by leaving a wall of earth between the trench and the “boil,” of from eight to twelve inches thick, the purpose being to break down this wall by piercing it with a long crow-bar after the laborers had left the trench. Of such a patent danger thex-e was xxo duty oxi the defendant to give the employés warning. The other peril arose from the fact, supported by a tendency of the evidence here, that a “boil” of ix’on upoxx being punctured, and having its shell broken, bursts, and throws out molten metal in all directions — “explodes,” as some of the witnesses stated as to this one, though this term was said to be inapt and inaccurate by others. Of this peril — the danger of the flying
Whether, in point of fact, however, this latent danger did exist, was a question for the jury. It was also for their determination, whether, conceding its existence, the inj ury resulted from it, from the natural ilow of the metal along the trench, or from both combined. They might have reached either one of the four possible conclusions m this connection. If they found the latent danger referred to did not exist, then they could not have rendered a verdict against the defendant for negligence in failing to give notice of the patent danger, since no such dut y rested on the defendant. If their conclusion was, that although the latent peril was incident to the thing being done, yet that the men were burned to death by the metal flowing down and along the ditch — the injury thus being produced by the patent danger in respect to which there was no duty of instruction upon the defendant — it still can not be said that the accident was chargeable to defendant’s negligence in failing to give proper warning of the unseen peril which did not cause the injury complained of We assume that the jury were correctly instructed as to defendant’s liability, if they found the existence of the unseen danger, that the injury resulted from it, and that there was a negligent failure on the part of those who represented the furnace company to instruct its servants in regard to it, since the record indicates nothing to the contrary. The instructions which were given, as shown by the record, for the defendant, and which proceeded on the theory, supported by one aspect of the evidence, that the only danger incident to the work was an open and unobscured one, or that, whether the only one or not, it produced the injury; and were to the effect that, if the jury found the danger to be one that could be readily seen by common observation, and this danger was set in motion, so to speak, by an act of intes
The judgment of the Circuit Court is affirmed.